Redbird Business Group, LLC et al v. Harrison

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
REDBIRD BUSINESS GROUP, LLC; 	)
REDBIRD BIOSCIENCE OKLAHOMA, 	)
LLC; and RB REALTYCO, LLC, 	)
)
Plaintiffs and 	)
Counter-Defendants, 	)
)
v. 	) 	Case No. CIV-20-098-JAR
)
MATTHEW HARRISON, 	)
)
Defendant and 	)
Counter-Claimant. 	)
OPINION AND ORDER
This 	matter 	comes 	before 	the 	Court 	on
Defendant/Counterclaimant’s 	Motion 	to 	Review 	Taxation 	of 	Costs
(Docket 	Entry 	#190). 	This 	Court 	conducted 	a 	hearing 	to 	receive
oral argument on this Motion.
Counterclaimant 	seeks 	a 	court 	review 	of 	the 	denial 	of 	the
vast majority of the costs he requested in a Bill of Costs by the
Clerk of this Court. 	On April 14, 2023, Counterclaimant filed a
Bill of Costs. 	(Doc. No. 175). 	He requested reimbursement in the
following general areas:
Fees for service 	$ 	445.00
Fees for transcripts 	$10,532.15
Fees for printing 	$ 1,363.20
Total 	$12,340.35
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Accompanying 	the 	Bill 	of 	Costs 	was 	a 	Declaration 	from
Counterclaimant’s 	counsel, 	Luke 	Connelly, 	and 	a 	single 	page
containing 	a 	breakdown 	of 	the 	claimed 	costs. 	(Doc. 	No. 	176).
Counterclaim 	Defendants 	filed 	a 	response, 	contesting 	the 	costs
requested. 	The bases for the objection were that Counterclaimant
set out conclusory statements on the necessity for the incurrence
of the costs, a lack of specificity as to the need for the printing,
trial transcripts were only for the convenience of counsel and not
due to necessity, vague descriptions of the transcripts obtained,
charge 	for 	real 	time 	transcripts, 	which 	are 	not 	permitted 	costs,
and 	the 	lack 	of 	a 	showing 	that 	depositions 	were 	necessarily
obtained for use at trial. 	(Doc. No. 179).
On May 26, 2023, the Clerk of Court entered an Order Taxing
Costs. 	The Clerk determined that Counterclaimant had provided “no
receipts, 	invoices 	or 	other 	documentation 	in 	support 	of 	the 	Bill
of 	Costs.” 	(Doc. 	No. 	189, 	p. 	1). 	The 	Clerk 	agreed 	that 	the
Counterclaimant was the prevailing party but awarded only the costs
for service totaling $445.00. 	Id.
Fed. 	R. 	Civ. 	P. 	54 	provides 	the 	basis 	for 	the 	recovery 	of
costs in stating
(d) Costs; Attorney's Fees.
(1) 	Costs 	Other 	Than 	Attorney's 	Fees. 	Unless
a 	federal 	statute, 	these 	rules, 	or 	a 	court
order 	provides 	otherwise, 	costs--other 	than
attorney's 	fees--should 	be 	allowed 	to 	the
prevailing party. But costs against the United
States, its officers, and its agencies may be
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imposed only to the extent allowed by law. The
clerk 	may 	tax 	costs 	on 	14 	days' 	notice. 	On
motion 	served 	within 	the 	next 	7 	days, 	the
court may review the clerk's action.
Fed. R. Civ. P. 54(d).
The 	local 	rules 	for 	this 	District 	provides 	further 	guidance
and 	requirements 	for 	the 	prevailing 	party 	to 	obtain 	costs. 	EDOK
LCvR 54.1 provides
Costs.
(a) 	A 	prevailing 	party 	who 	seeks 	to 	recover
costs 	against 	an 	unsuccessful 	party
pursuant 	to 	28 	U.S.C. 	§ 	1920 	shall 	file
a 	bill 	of 	costs 	on 	the 	form 	provided 	by
the Court Clerk and support the same with
a 	brief. 	The 	bill 	of 	costs 	and 	brief
shall 	be 	filed 	and 	served 	not 	more 	than
fourteen 	(14) 	days 	after 	entry 	of
judgment. 	The 	bill 	of 	costs 	and 	brief
shall 	be 	a 	separate 	document 	from 	the
motion for legal fees and its brief.
(b) 	The 	original 	of 	the 	verified 	bill 	of
costs 	shall 	have 	endorsed 	thereon 	proof
of 	service 	upon 	the 	opposite 	party. 	The
prevailing 	party 	shall 	provide 	either
receipts, 	documents 	or 	an 	affidavit 	in
support of the requested itemized costs.
Objections to the allowance of costs must
be 	filed 	within 	fourteen 	(14) 	days 	from
the date the bill of costs was filed.
EDOK LCvR 54.1 (emphasis added by Court).
The 	Court 	will 	consider 	each 	category 	of 	costs 	for 	which
recovery is sought in turn.
1) 	Reproduction Costs – Counterclaimant seeks to recovery
of the cost for reproducing some 11,360 documents. 	Pursuant to 28
U.S.C. 	§ 	1920(3) 	and 	(4), 	the 	prevailing 	party 	may 	recover 	the
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costs of fees related to copying and printing. 28 U.S.C. § 1920(3)–
(4). 	Fees for printing and copying must be “reasonably necessary
to the litigation of the case.” 	Furr v. AT & T Technologies, Inc.,
824 F.2d 1537, 1550 (10th Cir.1987); see also Mitchell v. City of
Moore, 	218 	F.3d 	1190, 	1204 	(10th 	Cir. 	2000). 	Documents 	produced
“solely 	for 	discovery” 	do 	not 	meet 	this 	standard. 	In 	re 	Williams
Sec. 	Litig.-WCG 	Subclass, 	558 	F.3d 	1144, 	1148 	(10th 	Cir. 	2009)
(citing Furr, 824 F.2d at 1550). 	Materials “merely ‘added to the
convenience of counsel’ or the district court” are not recoverable.
Id. 	at 	1147–1148. 	The 	“prevailing 	party 	bears 	the 	burden 	of
establishing the costs to which it is 	entitled.” 	Cohlmia 	v. St.
John 	Med. 	Ctr., 	693 	F.3d 	1269, 	1288 	(10th 	Cir. 	2012) 	(citing
Allison v. Bank One-Denver, 289 F.3d 1223, 1248 (10th Cir. 2002)).
Additionally, the amount requested “must be reasonable.” Id.
Citing 	EDOK 	LCvR 	54.1(b), 	Counterclaimant 	maintains 	that 	he
provided a declaration to justify the incurrence and reimbursement
of 	the 	copying 	of 	over 	11,000 	documents. 	Indeed, 	counsel 	for
Counterclaimant 	provides 	a 	declaration 	appended 	to 	the 	original
Bill of Costs presented to the Clerk. 	However, it merely contains
the 	regurgitated 	language 	of 	the 	case 	authority 	that 	all 	of 	the
costs set out in the Bill of Costs were “necessarily incurred in
the case.” 	(Doc. No. 175, Exh. No. 1). 	This is insufficient for
Counterclaimant 	to 	sustain 	his 	burden 	of 	demonstrating 	that 	the
copying 	costs 	were 	necessarily 	incurred 	without 	delving 	into 	the
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prohibited 	purposes 	stated 	in 	the 	case 	law. 	There 	is 	simply 	no
way 	for 	the 	necessity 	to 	be 	determined 	from 	a 	declaration 	with
boilerplate language. 	Copying costs will, therefore, be denied.
2) 	Service 	Costs 	– 	These 	fees 	amounting 	to 	$445.00 	are
uncontested and were awarded by the Clerk.
3) 	Transcript 	Costs 	– 	Counterclaimant 	seeks 	reimbursement
for 	the 	deposition 	transcripts 	of 	witnesses 	Namish 	Patel, 	M.D.,
Joe Byars, William A. Thurman, Jack Weinstein, Stacy Wright, Rita
Bintliff, 	Tom 	Harrison, 	and 	Matt 	Harrison. 	Counterclaimant 	also
seeks reimbursement for Realtime transcript amounting to $1,430.10
and 	“Ordinary 	Original 	and 	Ordinary 	1st 	Copy 	of 	Transcript 	of
Proceedings” at a cost of $1,647.10.
For the expense of a transcript to qualify as a taxable cost,
the transcript must be “reasonably necessary to the litigation of
the case.” 	Mitchell, 218 F.3d at 1204; see also In re Williams,
558 	F.3d 	at 	1148. 	Reasonably 	necessary 	“does 	not 	mean 	that 	the
transcript 	must 	have 	been 	indispensable 	to 	the 	litigation 	to
satisfy this test; it simply must have been necessary to counsel's
effective performance or the court's handling of the case.” 	Burton
v. 	R.J. 	Reynolds 	Tobacco 	Co., 	395 	F. 	Supp. 	2d 	1065, 	1078–79 	(D.
Kan. 	2005) 	(quoting 	10 	Charles 	Alan 	Wright, 	Arthur 	R. 	Miller 	&
Mary Kay Kane, Federal Practice & Procedure § 2677, at 438–40 (3d
ed. 	1998))(internal 	quotations 	omitted). 	“[A] 	court 	must 	find
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that daily copy was necessarily obtained, as judged at the time of
transcription.” 	Id. at 1078.
Counterclaimant 	does 	not 	provide 	any 	basis 	for 	the 	extra
expense 	for 	Realtime 	transcripts 	or 	the 	“ordinary 	original” 	and
their incurrence is not obvious from the statement provided. 	These
costs will be disallowed.
Despite not providing an explanation for the eight deposition
transcripts, 	this 	Court 	would 	be 	ignoring 	the 	nature 	of 	these
proceedings 	in 	disallowing 	these 	costs. 	The 	bench 	trial 	of 	this
case 	relied 	heavily 	upon 	deposition 	testimony, 	both 	at 	trial 	and
in the preparation of the proposed findings of fact and conclusions
of law ordered by this Court. 	These 	depositions were crucial to
assist 	the 	Court 	and 	the 	parties 	in 	the 	presentation 	of 	evidence
and 	preparation 	of 	this 	Court’s 	Opinion 	and 	Order. 	The 	cost 	of
these depositions in the amount of $7,454.95 will be permitted as
necessarily incurred.
IT 	IS 	THEREFORE 	ORDERED 	that 	Defendant/Counterclaimant’s
Motion 	to 	Review 	Taxation 	of 	Costs 	(Docket 	Entry 	#190) 	is 	hereby
GRANTED. 	Costs are awarded to Counterclaimant Matthew Harrison in
the total amount of $7,899.95.
IT IS SO ORDERED this 27th day of March, 2024.
______________________________
JASON A. ROBERTSON
UNITED STATES MAGISTRATE JUDGE
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